Lee Yuk Ying v. Ghim Kwok Chuen and Another
Read the full judgment text of HCA 3982/1978 on BabelCite. This High Court CFI judgment.
1. On the 30th July 1978 at about 6.15 p.m. the plaintiff, then 56 years of age, was knocked down by a taxi driven by the first defendant. The plaintiff was at that time crossing Shung Ling Street (the road) from north to south while the taxi was travelling along the road in an easterley direction.
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HCA003982/1978 IN THE SUPREME COURT OF HONG KONG HIGH COURT ACTION NO. 3982 OF 1978 -----------------
Coram: Mr Commissioner de Basto, Q.C. Date of Judgment: 6th November 1980 ----------------- JUDGMENT ----------------- 1. On the 30th July 1978 at about 6.15 p.m. the plaintiff, then 56 years of age, was knocked down by a taxi driven by the first defendant. The plaintiff was at that time crossing Shung Ling Street (the road) from north to south while the taxi was travelling along the road in an easterley direction. THE ACCIDENT 2. The plaintiff was at the mouth of Kam Wing Road (which was used as a market) when she intended to cross Shung Ling Street. The plaintiff testified that before crossing the road (which was a one-way street with two lanes) she looked to her right. She saw a taxi about "two blocks" away approaching. She was asked in examination-in-chief at what speed she estimated the taxi was travelling and she replied:
In cross-examination she said:
3. Having stated that she had seen a taxi approaching "very fast" she then went on to say later that she had not seen any vehicle approaching. She said, in cross-examination:
And again,
4. The plaintiff testified there were no cars parked along the road which stretched back for a good distance in a straight line. 5. Mr R.G.M. Wedderburn F.R.C.S. sent the plaintiff to an eye specialist, Dr Eugene So who found that in both eyes the plaintiff's visual fields were markedly restricted and that the plaintiff's "blurring vision symptoms" were partly due to cataract and partly due to refractive error. He prescribed spectacles to bring the plaintiff's vision to 6/24 in each eye. Dr So thought the cataract was senile in origin. 6. Mr Wedderburn testified that the cataract could not have developed in the year between the accident and her examination by Dr So and he concluded that the blurring experienced by the plaintiff was due to the cataract and not as a result of the accident. The plaintiff was asked whether her vision was "blurred" before the accident and she replied, "Yes, but not so worse". The plaintiff said she had almost reached the kerb on the other side of the road when she was hit by the taxi and that the impact threw her towards the middle of the road. The first defendant, on the other hand, testified that the plaintiff was struck when she was, approximately, just past the middle of the road. The first defendant said that when his taxi came to a halt (with brake marks of one metre) the plaintiff was lying, as I understand him just in front of the near side of the taxi. P.C. 9256 of the Traffic Accident Enquiry Bureau was asked whether he could say how fast the taxi was travelling prior to its stop and he replied it depended on the amount of force used by the driver on the brake - if a lot of force had been used, the vehicle would have been travelling at a fast speed, if only light force was used ... then he became somewhat incoherent and ended up saying "I can't tell". 7. The first defendant testified he was a professional taxi driver. He said he was very familiar with the area in the vicinity of the collision. He knew Kam Wing Street was a market. On the day in question he was driving on the southern lane towards the middle of the road - he had a good line of vision - there were no cars parked on either side. Before he reached anywhere near Kam Wing Street he was travelling at 20 - 22 m.p.h. He said, in effect, he was purposely in the southern lane because he knew there were a lot of pedestrians at the market at the mouth of Kam Wing Street. When at Yan Oi Street, about 5 to 6 shop widths from Kam Wing Street he saw some pedestrians crossing the road opposite Kam Wing Street. As a "natural reflex" he slowed down. When his vehicle reached Kam Wing Street there were no pedestrians crossing the road. Suddenly, from near the market at the mouth of Kam Wing Street he saw a woman about 8 feet away, suddenly dash out from the crowd at the market. The first defendant said he sounded his horn, braked hard and veered to the right to try to avoid this woman. He was unable to avoid hitting her and the left front tip of his mudguard collided with her. He got out of the car and found the plaintiff lying in front of the left side of his taxi. INJURIES 8. The plaintiff's main injuries were a compression fracture of the 11th thoracic vertebra and a fracture of the pelvis. She was detained in hospital for 24 days. The pelvic fracture has properly healed with no impairment. Mr Wedderburn said that the fracture of the 11th thoracic vertebra had united but the compression of the vertebra (more than 50%) upsets the mechanics of the spine which causes her some back pain. Mr Wedderburn said that exercises and physiotherapy would only help "marginally". 9. The evidence I have referred to is not intended to be an exhaustive review of the evidence but I have considered the whole of the evidence. 10. I thought the plaintiff a palpably unreliable witness. I am quite unable to attach any weight to her evidence. In forming this view I have disregarded the references by Mr Wedderburn that he thought the plaintiff had exaggerated certain aspects of her condition. I think, on the whole of the evidence, that the plaintiff, wanting to cross the road, saw some people in the act of crossing the road and she simply ran after them recklessly disregarding whether there was any approaching traffic or whether it was safe for her to do so. I thought the first defendant a serious and impressive witness who gave his evidence without embellishment. I believe his evidence and I am satisfied that no blame whatever can properly be attributed to him in respect of the accident. I am satisfied that the plaintiff was wholly to blame for the accident. 11. Accordingly, there will be judgment for the defendants with costs. 12. I now come to the quantum of the damages I would have awarded had I come to a different conclusion. DAMAGES 13. The plaintiff was in hospital for about 24 days. She suffered a period of post-traumatic ammensia and post-traumatic neuralgia and needed a companion to help her in walking for about a month. Mr Wedderburn assessed her disability as the same as her impairment, namely a 10% disability. Mr Wedderburn said her back pain would effect her efficiency. In his report of the 11th May, 1978 Mr Wedderburn said that "women in their fifties find it difficult to return to any form of work after a serious injury". In cross-examination on this aspect he said the fact that she was not "robust" and was aged 56 at the time of the accident together with her back pain might make it difficult for her to get a job and that the great majority of people over 50 have great difficulty in going back to work. 14. For pain, suffering and loss of amenities I would have awarded the sum of $30,000. As regards loss of future earnings, the plaintiff was employed immediately prior to the accident in a factory at the somewhat derisory wage of $318.44 per month. Had she remained in that same employment she would now be earning $650 per month. However, since about the 30th January 1978 she has been acting as a baby-sitter for her daughter involving cooking, some laundry and taking the child to school. When asked how much she thought she could earn if she performed similar work for someone else she said, "At least if one did not get $600 one would get $700" which I interpret to mean between $600 and $700 per month. As she could now have been receiving $650 per month I cannot see how I could have awarded her any sum in respect of loss of future earnings. I note, further, she was asked:
As regards special damages I would have allowed $477.66 as loss of wages from July to September 1977 and $305 as a reduction in salary from September 1977 to January 1980. I would also have allowed $115 as hospital fees, $300 as bonesetter's fees, $36 for damaged clothing and $134 for travelling expenses making a total of $1,367.85. 15. I would have allowed the plaintiff 12% interest on the general damages from the date of service of the writ and 6% interest on the special damages from the date of the accident. Representation: Miss Maria Yuen instructed by Director of Legal Aid for plaintiff Mr B.K. Ho instructed by Kenneth K.C. Wong & Co. for both defendants |